Kyl-McCain water bill drawing fire

T he Navajo Nation Council, unlike President Ben Shelly, is not ready to support the Navajo-Hopi Little Colorado River Water Rights Settlement that Arizona Sen. Jon Kyl and John McCain are pushing to pass.

Not so fast, said Delegate Katherine Benally, echoed by several citizen groups and former officials of the Hopi Tribe.

On Feb. 14, Kyl and McCain introduced Senate Bill 2109, which Kyl called "an important step in the long history of the water rights negotiations among the Navajo Nation, the Hopi Tribe, and a host of public and private entities."

Kyl acknowledged that approval by the tribes is still needed for the legislation, which he said "settles the legal claims of northern Arizona tribes to water from the Little Colorado River."

In November 2010, the previous Council voted 51-24 to approve a water rights agreement, the Northeastern Arizona Indian Water Rights Settlement Agreement, which included settlement of Lower Colorado Basin water rights and federal funding of $800 million worth of Navajo water projects including the Western Navajo pipeline.

But Navajo Nation water rights attorney Stanley Pollack said Wednesday that the 2010 agreement died when Kyl told the tribe in March 2011 that he could not sponsor it because he believed that Congress would not swallow the $800 million price tag.

Pollack said Kyl specifically asked to drop the pipeline - the most costly project - from the agreement. Pollack said he told Kyl the Navajo Nation would never support that.

He recalled that Kyl then recommended the parties renegotiate the agreement, which led to the removal of the Lower Colorado River from the settlement.

Kyl's bill, SB 2109, includes three water projects that would bring drinking water to the Navajo and Hopi reservations in exchange for the tribes waiving their water claims to the Little Colorado River.

The three water projects authorized in the bill are the Leupp-Dilkon Regional Groundwater Project, the Ganado Regional Groundwater Project, and the Hopi Groundwater Project.

Talking money

Kyl's bill also calls for the Navajo Nation to drop additional claims against the federal government regarding management of the Lower Colorado River, which "specifically affect water policy and water management in Arizona, California, and Nevada."

The bill would allow 6,411 acre-feet of water from the Central Arizona Project to be withdrawn upstream, from the San Juan River, and used for the Navajo-Gallup water pipeline.

This would help get around a legal restriction on San Juan River water, and allow it to be used by Gallup and the Window Rock area.

Under Kyl's bill, the water projects could not go forward unless federal and tribal authorities approve leases allowing the Navajo Generating Station and the Kayenta Coal Mine to continue operating.

The provision represents a gift to the Salt River Project, operator of NGS, which Kyl represented as a lawyer in private practice.

"The reauthorization will occur if and when the tribes agree to extend the leases and other agreements associated with the Navajo Generating Station," Kyl stated in his release.

The bill also calls for any water rights agreement with the tribes to be modified to match the bill, and includes a sweeping waiver of rights to the Little Colorado by both tribes.

On March 23, the Council called a special meeting to hear from Pollack and the Navajo Water Rights Commission about SB 2109, especially since the procedure for settling Indian water rights has always involved reaching agreement with the tribes and then introducing federal legislation to ratify the agreement.

The report, which was presented in English by Pollack and in Navajo by water rights commissioner Ray Gilmore, included testimony from community members from around the Navajo Reservation who are skeptical of Kyl's motives and want more public discussion of any water settlement.

Anna Frazier, a Western Agency resident, urged the Council to take the settlement to the people via a referendum.

"We need to slow down, step back," Frazier pleaded. "Kyl wants to get his bill through so he has more credibility when he leaves. If we agree with this, it's going to be permanent."

Kyl has said he plans to retire at the end of his term next January.

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"Mr. Pollack and commission, no deal!" declared Benally, chair of the Council's Resources and Development Committee, after hearing from Pollack, the commission and the community activists.

Her statement brought loud applause from spectators in the gallery.

Benally recalled meeting with Kyl about his bill. Pollack and Delegate Leonard Tsosie also attended.

"Kyl told us to straighten these matters out because the Hopi Tribe was fighting," she said. "Leonard Tsosie and I went blindly into that meeting. We tried to be cool. But our biggest concern was the fact that NGS was included."

Benally said Tsosie and she recommended that the NGS issue be separate from the settlement.

She said she and Tsosie then met with the Resources and Development Committee, and directed Attorney General Harrison Tsosie to send a letter to Kyl outlining their concerns about SB 2109.

Benally said two weeks later they asked for a copy of the letter, only to learn that it had never been drafted.

"We were in session, right here, when I got a phone call from the attorney general and he said we didn't issue the letter because we didn't want to jeopardize the deal," she said angrily.

"Since then the committee has been trying to find out who 'we' is and what deal," she said. "That's why I say today there is no deal.

"We shouldn't support this," Benally said. "Since when did Kyl ever give a damn about the Navajo people? Never! This is self-serving. He's setting himself up to go back to work with SRP, NGS, whoever it is."

Shelly backs bill

Shelly, however, praised Kyl and McCain for introducing SB 2109, and has hired a Washington lobbying firm to help them get it passed.

"We applaud Senator Kyl and Senator McCain for introducing this important legislation and we look forward to working with them to ensure passage of S 2109," Shelly announced in a Feb. 29 press release.

"Water is precious and sacred," he said. "This settlement has been decades in the making. It creates opportunity for more of our Navajo people to gain access to safe and reliable water sources. Water rights are a sensitive topic to many and we, the Navajo Nation government, take into account all the views expressed."

Pollack is quoted in the release, stating, "Sen. Kyl's remarks were a sobering reminder that we have worked on Little Colorado River issues for more than a quarter of the time that Arizona has been a state but that is a small amount of time compared to the long wait that many Navajo people have endured to obtain safe and reliable drinking water."

According to documents about SB 2109 that Pollack distributed to the Council, the two water projects for the Navajo Nation and their operation and maintenance would be funded at a total cost of $358 million.

The bill specifies that the tribe will be responsible for operating and maintaining the water systems, although any money unspent in their construction can be used for O&M.

Pollack said no waivers of water rights would take effect until the projects are fully funded, as determined by the secretary of the Interior.

Public meeting today

The Leupp-Dilkon project, which has a price tag of $125.6 million, would provide 4,776 acre-feet per year of Coconino Aquifer water to the western reservation communities of Leupp, Birdsprings, Tolani Lake, Teesto, Dilkon, Indian Wells, Lower Greasewood, and White Cone.

The Ganado project, which would cost $73.4 million, would bring 5,600 acre-feet per year of C-aquifer water to the communities of Ganado, Kinlichee, Jeddito, Cornfields, Steamboat, Klagetoh, and Wide Ruins.

At the Council's directive, the Navajo Water Rights Commission is scheduling a series of public hearings across the reservation.

Commission staff said Wednesday that a schedule would be emailed to the Navajo Times but it had not arrived by press time late Wednesday.

"This bill reduces tribal sovereignty and relinquishes water rights from the Navajo and Hopi tribes," conference organizers stated on fliers distributed by email.

Former Hopi Chairmen Benjamin Nuvamsa, Vernon Masayesva and Ivan Sidney and former Hopi Vice Chairman Caleb Johnson have called for Hopi Chairman Leroy Shingoitewa to convene a special meeting of the Hopi Tribal Council to hear testimony from Hopi and Tewa people on SB 2109.

Nuvamsa said that Kyl's bill would "permanently waive and extinguish our aboriginal and ancestral rights to our water."

Sidney said, "Arizona Senators Jon Kyl and John McCain are pressuring our tribal government to permanently sign away our water rights, in exchange for giving outside corporations and interests exclusive life-of-mine leases to our remaining coal fields and all the free water they need to process the coal to make electricity and ensure the Central Arizona Project canal continues to provide water to non-Indian lands."